109B
AMERICAN BAR ASSOCIATION
COMMISSION ON DOMESTIC & SEXUAL VIOLENCE
COMMISSION ON HOMELESSNESS & POVERTY
COMMISSION ON YOUTH AT RISK
REPORT TO THE HOUSE OF DELEGATES
RESOLUTION
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RESOLVED, That the American Bar Association urges federal, state, local, territorial, and tribal
governments and regulators to amend existing laws and regulations, or to enact new laws or regulations,
to:
(1) ensure that victims of domestic violence, dating violence, sexual assault, and stalking have
meaningful access to safety and autonomy in their homes (whether owned, leased, subsidized,
offered incident to work or school, or otherwise), including prompt access to the criminal and
civil justice systems, by—
a. providing options such as no-penalty early lease termination, lease bifurcation, lease
transfer, eviction defense, and lock changes; and
b. prohibiting retaliation, discrimination, or penalties in housing due to perpetrator behavior
or status as a victim; and
c. preserving privacy and confidentiality to the greatest extent possible; and
(2) enable public and assisted housing agencies, tribally designated housing entities, private
landlords, property management companies, campus housing administrators and other housing
providers and agencies to respond appropriately to victims and perpetrators of domestic violence,
dating violence, sexual assault, and stalking, while maintaining a safe environment for all
housing residents;
consistent with the Congressional findings and policies expressed at 42 U.S.C. 14043e et seq.
(“Addressing the Housing Needs of Victims of Domestic Violence, Dating Violence, Sexual
Assault, and Stalking”).
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REPORT
In 2003, this body adopted (and in 2013, retained) a policy opposing discrimination in housing
against victims of domestic violence:
RESOLVED, That the American Bar Association supports federal, state, local and
territorial legislation to prohibit discrimination in housing against victims of domestic
violence;
FURTHER RESOLVED, That the American Bar Association urges all relevant federal,
state, local and territorial administrative agencies to adopt and vigorously enforce
regulations to combat such discrimination.
The 2003 policy report noted that “Difficulties in finding adequate and affordable housing are a
significant factor in domestic violence victims' decision to stay with or return to abusers,” and
that “Until we stop asking women to choose between being beaten and being able to feed and
shelter their children, we cannot expect to rid our society of domestic violence.”
Two years later, Congress passed, and President Bush signed, legislation protecting survivors
living in public and Section 8 subsidized housing, as part of the Violence Against Women Act
(“VAWA”) of 2005.1 At that time, Congress found that:
(1) There is a strong link between domestic violence and homelessness. Among cities
surveyed, 44 percent identified domestic violence as a primary cause of homelessness.
(2) Ninety-two percent of homeless women have experienced severe physical or sexual
abuse at some point in their lives. Of all homeless women and children, 60 percent had
This part of VAWA, 42 U.S.C. 14043e et seq., entitled “Addressing the Housing Needs of Victims of Domestic
Violence, Dating Violence, Sexual Assault, and Stalking,” provides in part:
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The purpose of this subpart is to reduce domestic violence, dating violence, sexual assault, and stalking, and to
prevent homelessness by—
(1) protecting the safety of victims of domestic violence, dating violence, sexual assault, and stalking who reside in
homeless shelters, public housing, assisted housing, tribally designated housing, or other emergency, transitional,
permanent, or affordable housing, and ensuring that such victims have meaningful access to the criminal justice
system without jeopardizing such housing;
(2) creating long-term housing solutions that develop communities and provide sustainable living solutions for
victims of domestic violence, dating violence, sexual assault, and stalking;
(3) building collaborations among victim service providers, homeless service providers, housing providers, and
housing agencies to provide appropriate services, interventions, and training to address the housing needs of victims
of domestic violence, dating violence, sexual assault, and stalking; and
(4) enabling public and assisted housing agencies, tribally designated housing entities, private landlords, property
management companies, and other housing providers and agencies to respond appropriately to domestic violence,
dating violence, sexual assault, and stalking, while maintaining a safe environment for all housing residents.
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been abused by age 12, and 63 percent have been victims of intimate partner violence as
adults.
(3) Women and families across the country are being discriminated against, denied access
to, and even evicted from public and subsidized housing because of their status as victims
of domestic violence.
(4) A recent survey of legal service providers around the country found that these
providers have responded to almost 150 documented eviction cases in the last year alone
where the tenant was evicted because of the domestic violence crimes committed against
her. In addition, nearly 100 clients were denied housing because of their status as victims
of domestic violence.
(5) Women who leave their abusers frequently lack adequate emergency shelter options.
The lack of adequate emergency options for victims presents a serious threat to their
safety and the safety of their children. Requests for emergency shelter by homeless
women with children increased by 78 percent of United States cities surveyed in 2004. In
the same year, 32 percent of the requests for shelter by homeless families went unmet due
to the lack of available emergency shelter beds.
(6) The average stay at an emergency shelter is 60 days, while the average length of time
it takes a homeless family to secure housing is 6 to 10 months.
(7) Victims of domestic violence often return to abusive partners because they cannot
find long-term housing.
(8) There are not enough Federal housing rent vouchers available to accommodate the
number of people in need of long-term housing. Some people remain on the waiting list
for Federal housing rent vouchers for years, while some lists are closed.
(9) Transitional housing resources and services provide an essential continuum between
emergency shelter provision and independent living. A majority of women in transitional
housing programs stated that had these programs not existed, they would have likely gone
back to abusive partners.
(10) Because abusers frequently manipulate finances in an effort to control their partners,
victims often lack steady income, credit history, landlord references, and a current
address, all of which are necessary to obtain long-term permanent housing.
(11) Victims of domestic violence in rural areas face additional barriers, challenges, and
unique circumstances, such as geographical isolation, poverty, lack of public
transportation systems, shortages of health care providers, under-insurance or lack of
health insurance, difficulty ensuring confidentiality in small communities, and decreased
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access to many resources (such as advanced education, job opportunities, and adequate
childcare).
(12) Congress and the Secretary of Housing and Urban Development have recognized in
recent years that families experiencing domestic violence have unique needs that should
be addressed by those administering the Federal housing programs.
Over the 8 years since their enactment, VAWA’s housing protections have preserved housing
and prevented homelessness for thousands of survivors and their families. In early 2013,
Congress expanded VAWA protections to include nearly all federally subsidized housing units,
including HUD funded housing, USDA rural housing, and housing funded through the Low
Income Housing Tax Credit (LIHTC) program.
Protections apply to survivors of domestic/dating violence, sexual assault, and stalking, as well
as to family or household members of the survivor. Protections include defense from eviction
based on acts of the perpetrator, lease bifurcation to allow eviction of a perpetrator,
confidentiality of victim information, and protection from discrimination. These are important
provisions which already apply to nearly all public and many private landlords throughout the
nation.
However, a survivor’s ability to preserve both housing and safety should not depend on their
status as a public or subsidized housing tenant. Consequently, this resolution urges that all
governments enacting housing laws aim to mirror VAWA’s housing provisions. This would
help save lives, and have the added benefit of ensuring uniform treatment for all tenants and their
landlords, without regard for how the rent gets paid.
Trends in State Legislation
Survivors of domestic violence, dating violence, sexual assault and stalking can often face a
terrible choice: the choice between staying in their housing and potentially subjecting themselves
to ongoing and repeated violence; or fleeing to preserve their safety, but in the process losing
their housing and often becoming homeless. At the very least, survivors who leave to preserve
their health and safety often face economic hardship because of lease break fees and ongoing
rent obligations for homes they cannot safely live in. Others are evicted from or denied access to
new housing because of the violence perpetrated against them.
According to the National Law Center on Homelessness and Poverty, “…1 in 4 homeless adults
reported that domestic violence was a cause of their homelessness, and between 50% and 100%
of homeless women have experienced domestic or sexual violence at some point in their lives.”2
But states are beginning to respond, in varied and important ways. Of the more than 28 states
National Law Center on Homelessness and Poverty, There’s No Place Like Home: State Laws that Protect
Housing Rights for Survivors of Domestic and Sexual Violence, available at
http://www.nlchp.org/Theres_No_Place_Like_Home.
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(rural, urban, southern, northern, eastern, western, “liberal” and “conservative”)3 that have
adopted landlord-tenant provisions protecting survivors, many have included additional
protections beyond those provided in VAWA:
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80% of states permit a perpetrator of violence to be excluded from the survivor’s
residence;
76% of states have passed legislation to protect the confidentiality of a survivor’s
personal information in housing;
44% of states offer survivors and their families either relocation assistance or a right to
emergency shelter;
42% of states permit survivors to terminate their lease early;
30% of states have enacted lock change statutes that protect the safety of survivors;
10% of states permit survivors to bifurcate a lease in order to early-terminate themselves
or to exclude the perpetrator from the lease.4
This resolution recommends that governments and regulators adopt these and other similar
provisions, in order to protect survivor safety and privacy, while also providing landlords with
reasonable and uniform instructions on how to meet the needs of survivor-tenants and protect
their own interests.
Discrimination, Retaliation, Penalties
Unfortunately, it is not at all uncommon, even in jurisdictions that allow for early lease
termination and/or lease bifurcation, for victim-tenants to be held accountable for the bad acts of
a perpetrator, often with heavy financial costs, eviction, or denial of new housing as a result. In
many instances, perpetrators know this, and intentionally create dangerous or destructive
conditions as a means of further harming the victim-tenant.
One example is the perpetrator who intentionally damages the dwelling, whether during a violent
incident aimed at injuring or controlling the victim-tenant; as a means of creating an unavoidable
“signature” for the victim-tenant to live with, reinforcing the perpetrator’s power and control; or
even to intentionally render the home uninhabitable for the victim-tenant. Another is the
perpetrator who is invited in for a legitimate purpose (e.g. pick-up or drop-off of children,
exchange of household items or financial support) and then exceeds the bounds of the invitation
and creates a damaging or dangerous situation for the victim or for other tenants. Alternatively, it
could be that the trauma for a victim of remaining in the home where she or he was raped,
stalked, or beaten is simply too much to bear.
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See, e.g., Alabama Title 30, Chapter 5, Protection from Abuse Section 30-5-2; Arkansas Code Title 9, Chapter 15,
Subchapter 1. General Provisions. 9-15-103(5); Colorado Title 26, Part 8, Section 18-6-800.3; Idaho Code Title 39,
Chapter 63, 39-6303; Merged Iowa Code Chapter 236.2(e); New York Family Court Act Article 1, Part 1, Section
812; Oregon ORS 90.100(9); Pennsylvania Title 23, Part VII, Chapter 61; Washington RCW 26.50.010 (2), (6)(B),
(7)(C)).
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See note 2, p. 6. Note: the information in this report was current as of October 2012.
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In all of these cases, the tenant is a victim of crime, and, as a matter of public policy, should not
be held accountable (via damage fees, “strikes” or warnings, increased rents or security deposits,
eviction, or other penalties) for the perpetrator’s criminal acts under the terms of the lease.
Victims of rape, assault or stalking can no more control the behavior of their assailants than can
victims of burglary, and should not be held to a higher standard of responsibility. As the 2003
policy states; “Legislatures and housing authorities should make clear…that the criminal activity
of domestic violence against a tenant cannot be a justifiable cause for eviction or other
discrimination.”
Local Trends
Unlike trends in state law, which are moving toward offering more protections for victims, some
local ordinances are growing more punitive toward survivors of domestic and sexual violence.
Hundreds of municipalities across the country have enacted “nuisance” ordinances, originally
intended to help communities respond to blight caused by the drug trade. However, these same
ordinances are now frequently being used against victims of crime who seek police assistance,
resulting in fees and even eviction for calling 911.5
Judicial Trends
In June of 2013, the U.S. Supreme Court granted certiorari in Township of Mount Holly v. Mt.
Holly Gardens Citizens in Action, in which the question was whether disparate impact claims are
cognizable under the Fair Housing Act.6 The FHA prohibits housing discrimination on the
grounds of race, color, religion, sex, familial status or national origin. Lower courts and the
Department of Housing and Urban Development have agreed that because most victims of
domestic and sexual violence are women, disparate impact claims may be brought under the
FHA against landlords who discriminate against domestic or sexual violence victims. Mount
Holly settled and certiorari was dismissed two weeks before oral arguments.7
However, in October 2014 the Court again granted cert in another FHA disparate impact case,
Texas Department of Housing and Community Affairs v. The Inclusive Communities Project,
Inc..8 It seems the Court is determined to offer a ruling on the issue in the near future. And, in a
See, e.g., “Victims’ Dilemma: 911 Calls Can Bring Eviction” at http://www.nytimes.com/2013/08/17/us/victimsdilemma-911-calls-can-bring-eviction.html?_r=0; Emily Werth, Sargent Shriver National Center on Poverty Law,
The Cost of Being "Crime Free": Legal and Practical Consequences of Crime Free Rental Housing and Nuisance
Property Ordinances, August 2013, at http://povertylaw.org/sites/default/files/files/housing-justice/cost-of-beingcrime-free.pdf
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See http://www.scotusblog.com/case-files/cases/mount-holly-v-mt-holly-gardens-citizens-in-action-inc/
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Similarly, the Court granted certiorari for a case presenting the same question in 2012; it too settled before
argument. (See http://www.scotusblog.com/case-files/cases/magner-v-gallagher/)
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See http://www.scotusblog.com/case-files/cases/texas-department-of-housing-and-community-affairs-v-theinclusive-communities-project-inc/
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surprising ruling on November, 2014, a federal district judge held, against the tide of 11 other
circuits, that disparate impact claims are not, in fact, cognizable under the FHA.9
What all of this means for victims of domestic and sexual violence is that it is possible, given the
current legal landscape, that while VAWA will continue to offer housing protections for victims
in most types of public housing, victims who live in unsubsidized housing could be left with no
federal legal cover when faced with eviction, penalties, or refusal to rent as a result of perpetrator
actions. This makes the premise of this policy all the more urgent.
Conclusion
In order to ensure safety and autonomy for those terrorized by domestic violence, sexual assault
and stalking, we cannot ask them to choose between continued trauma, or a roof over their head.
By providing real and viable options to staying put and tolerating violence, such as no-penalty
early lease termination, lease bifurcation, lease transfer, and lock changes; as well as no-penalty
access to law enforcement and the courts, we can create a safer environment for all residents.
Sincerely,
Angela Vigil, Chair
Commission on Domestic & Sexual Violence
February 2015
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https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv0966-45; See also
http://www.bloomberg.com/news/2014-11-03/housing-law-bars-only-intentional-bias-judge-says.html
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GENERAL INFORMATION FORM
Submitting Entity: Commission on Domestic & Sexual Violence
Submitted By: Angela Vigil
1. Summary of Resolution(s). This policy seeks to expand housing protections for victims of domestic
violence, dating violence, sexual assault and stalking, using the federal Violence Against Women
Act, as well as some emerging state practices, as a model.
2. Approval by Submitting Entity. The Commission voted to approve this policy November 19, 2014.
3. Has this or a similar resolution been submitted to the House or Board previously? No.
4. What existing Association policies are relevant to this Resolution and how would they be affected by
its adoption? This policy would supplement a 2003 policy opposing discrimination against victims
of domestic violence in housing
(http://www.americanbar.org/content/dam/aba/directories/policy/2003_my_106b.authcheckdam.pdf)
as well as the 2010 policy supporting the Violence Against Women Act and similar legislation
(http://www.americanbar.org/content/dam/aba/directories/policy/2010_my_115.authcheckdam.pdf).
5. If this is a late report, what urgency exists which requires action at this meeting of the House? n/a
6. Status of Legislation. (If applicable) n/a
7. Brief explanation regarding plans for implementation of the policy, if adopted by the House of
Delegates. We plan to implement the policy by using it as a basis for potential letters to Congress, as
well as educational outreach to state and local bar associations.
8. Cost to the Association. (Both direct and indirect costs) none
9. Disclosure of Interest. (If applicable) n/a
10. Referrals. Real Property, Trust & Estate Law; Forum on Affordable Housing & Community
Development Law; Tort Trial & Insurance Practice; State & Local Government Law; Commission
on Women in the Profession; Solo, Small Firm & General Practice Division; Individual Rights &
Responsibilities
11. Contact Name and Address Information. (Prior to the meeting. Please include name, address,
telephone number and e-mail address) Rebecca Henry, Deputy Chief Counsel, ABA CDSV, 1050
Connecticut Avenue NW, Washington DC, 20036, 202-662-1737, rebecca.henry@americanbar.org
12. Contact Name and Address Information. (Who will present the report to the House? Please include
name, address, telephone number, cell phone number and e-mail address.) Angela Vigil, Baker &
McKenzie, 1111 Brickell Ave., Miami, FL 33131, (305) 789-8904,
angela.vigil@bakermckenzie.com
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
This policy seeks to expand housing protections for victims of domestic violence, dating
violence, sexual assault and stalking, using the federal Violence Against Women Act, as well as
some emerging state practices, as a model.
2.
Summary of the Issue that the Resolution Addresses
Survivors of domestic violence, dating violence, sexual assault and stalking can often face a
terrible choice: the choice between staying in their housing and potentially subjecting themselves
to ongoing and repeated violence; or fleeing to preserve their safety, but in the process losing
their housing and often becoming homeless.
VAWA’s housing protections have preserved housing and prevented homelessness for thousands
of survivors and their families. In early 2013, Congress expanded VAWA protections to include
nearly all federally subsidized housing units, including HUD funded housing, USDA rural
housing, and housing funded through the Low Income Housing Tax Credit (LIHTC) program.
However, a survivor’s ability to preserve both housing and safety should not depend on their
status as a public or subsidized housing tenant. Consequently, this resolution urges that all
governments enacting housing laws aim to mirror VAWA’s housing provisions. This would
help save lives, and have the added benefit of ensuring uniform treatment for all tenants and their
landlords, without regard for how the rent gets paid.
3.
Please Explain How the Proposed Policy Position will address the issue
This policy supports specific types of housing protections for survivors, modelled on VAWA and
as well as some emerging state practices.
4.
Summary of Minority Views
None reported.
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